EXHIBIT 10.3
PUT AGREEMENT
THIS PUT AGREEMENT (this "AGREEMENT"), dated as of June 1,
2000, is made and entered into by and among WESTFIELD AMERICA, INC., a Missouri
corporation (the "COMPANY"), and WESTFIELD CAPITAL CORPORATION FINANCE PTY.
LIMITED, ACN 003 077 816, a company incorporated in the State of New South
Wales, Australia ("WCCF").
In consideration of $10,000 paid by WCCF to the Company and of
the promises and the mutual representations, warranties, agreements and
covenants contained in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and WCCF agree as follows:
1. PUT OPTION
(a) GRANT OF PUT. At any time and from time to time on or
after June 1, 2002 and prior to June 1, 2010 (the "EXPIRATION DATE"), WCCF shall
be entitled to sell all (but not less than all) issued and outstanding common,
preferred and any other equity securities of Westland Realty, Inc., a Maryland
corporation ("WRI") to the Company for the consideration and on the terms set
forth below (such securities, the "PUT SECURITIES"). The put right granted in
this Section 1(a) shall expire on the Expiration Date.
(b) PUT NOTICE. If WCCF elects to exercise its right to
sell the Put Securities to the Company, it shall deliver a notice to the Company
(the "PUT NOTICE") of its intention to exercise such right not less than 120
days in advance of the date on which WCCF intends to exercise such right. The
Put Notice shall also set forth the date on which WCCF intends to exercise its
put right, which date must be on or prior to the Expiration Date. In addition,
the Put Notice shall contain a schedule describing, as of the date of the Put
Notice, the assets held by WRI and the liabilities to which WRI or its assets
are then subject (the "NET ASSET SCHEDULE"). If, within 14 days after the date
of the Put Notice, the Company notifies WCCF that it requires further details
concerning such assets or liabilities, WCCF must provide such further additional
details.
(c) ACQUISITION CONSIDERATION. Subject to SECTION 1(d),
the consideration to be paid by the Company for the Put Securities shall be 98%
of the aggregate Fair Market Value of the Put Securities on the date of the Put
Notice. The acquisition consideration to be paid for the Put Securities shall be
paid solely in the form of shares of the Company's Series F Cumulative
Redeemable Preferred Stock, par value $1.00 per share or, in the event
of a merger, the consideration in the merger into which such shares of preferred
stock are converted into or exchanged or exercisable for (the "SERIES F
PREFERRED SHARES"). The number of Series F Preferred Shares to be issued to WCCF
for the Put Securities shall be equal to the acquisition consideration
calculated above, divided by the Fair Market Value of a Series F Preferred
Share, calculated as of the date of the Put Notice. For purposes of this
Agreement, "Fair Market Value" shall mean the price at which a willing buyer and
a willing seller would purchase the Put Securities or the Series F Preferred
Shares, as applicable, and shall be determined by independent valuation, with
any firm conducting any such valuation and the method of valuation chosen to be
mutually acceptable to both the Company and WCCF. If the Company and WCCF are
unable to agree upon a valuation firm, the Company and WCCF shall each name a
firm to conduct the valuation and, such firms shall then designate a third firm
to conduct the valuation, which decision shall be binding upon both the Company
and WCCF. If WRI or any of its subsidiaries own Series F Partnership Units of
Westfield America Limited Partnership, a Delaware limited partnership ("XXXX"),
the Fair Market Value of a Series F Preferred Share shall be equal to the Fair
Market Value of a Series F Partnership Unit.
The Company shall have 30 days from the date of receipt of the
Put Notice to elect not to retain any of the assets held by WRI (other than
securities of the Company or XXXX) (collectively, the "UNWANTED ASSETS"). If the
Company makes such an election, for purposes of determining the Fair Market
Value of the Put Securities, the Fair Market Value of the Put Securities shall
be reduced by the sum of (x) the reasonably estimated cost of disposing of the
Unwanted Assets and, (y) all income, transfer and other taxes which will be
incurred in connection with such disposition.
(d) MAXIMUM NUMBER OF SERIES F PREFERRED SHARES TO BE
ISSUED. No more than 55,000 Series F Preferred Shares may be issued in respect
of the put right unless approved by a majority of the Company's shareholders
voting at a meeting on such issue, other than Westfield Holdings Limited and its
affiliates (including, without limitation, Westfield America Trust) and
interests associated with the Xxxx family.
2. CONSIDERATION FOR PUT RIGHT. The consideration
payable by WCCF for the put right described in Section 1(a) shall be $10,000,
which has been paid by WCCF to the Company simultaneously with the execution and
delivery of this Agreement.
3. DELIVERIES; CONDITIONS.
(a) The delivery of the Series F Preferred Shares issued
by the Company in exchange for the Put Securities shall take place at such time
and at such place as is set
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forth in the Put Notice or at such other time and place as may be mutually
agreed to by the Company and WCCF (such date, the "PUT DATE").
(b) On the Put Date, WCCF shall execute and deliver (i)
documents transferring the Put Securities and all required filings with respect
to the transfer of the Put Securities, in form and substance reasonably
satisfactory to the Company (including, without limitation, filings and
documents evidencing WCCF's exemption from U.S. state and Federal withholding
taxes) and (ii) a certificate, dated the Put Date, signed on behalf of WCCF in
substantially the form attached as EXHIBIT A hereto.
(c) The obligations of the Company to consummate the
transactions contemplated by this Agreement shall be subject to the following
conditions:
(i) WCCF shall have complied with all
of its covenants and obligations hereunder, including
delivering the documents set forth in clause (b) above, and
shall be prepared to consummate the transactions contemplated
by this Agreement on the Put Date;
(ii) No action shall have been taken,
and no statute, rule, regulation, order, judgment, decree, or
injunction shall have been enacted, entered, promulgated or
enforced by any court of competent jurisdiction or
governmental entity which restrains, enjoins or otherwise
prohibits the consummation of the transactions contemplated by
this Agreement;
(iii) As of the Put Date, WRI shall not
hold any assets that, in the opinion of the Company, could
cause WRI to fail to qualify as a real estate investment trust
within the meaning of Sections 856 through 860 of the Internal
Revenue Code of 1986, as amended (the requirements of those
Sections being referred to as the "REIT REQUIREMENTS"); and
(iv) As of the Put Date, neither WRI nor
any of its subsidiaries nor any of their assets shall be
subject to any liability other than (A) non-recourse mortgage
debt, (B) indebtedness for customary trade payables in
connection with real estate owned by WRI, and (C) tax
liabilities (including interest and penalties with respect to
tax liabilities), but only in each of (A), (B) and (C) above
to the extent that such permitted liabilities are specifically
listed on the Net Asset Schedule.
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(d) The obligations of WCCF to consummate the
transactions contemplated by this Agreement shall be subject to the following
conditions:
(i) The Company shall have complied
with all of its covenants and obligations hereunder, including
delivering the documents set forth in clause (a) above; and
(ii) No action shall have been taken,
and no statute, rule, regulation, order, judgment, decree, or
injunction shall have been enacted, entered, promulgated or
enforced by any court of competent jurisdiction or
governmental entity which restrains, enjoins or otherwise
prohibits the consummation of the transactions contemplated by
this Agreement.
4. BINDING OBLIGATION. Except as otherwise provided
herein, upon delivery of the Put Notice by WCCF, WCCF shall be obligated to sell
to the Company the Put Securities and the Company shall be obligated to purchase
the Put Securities.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to WCCF as follows:
(a) it has been duly organized, is validly existing as a
corporation and is in good standing under the laws of its jurisdiction of
organization and has all requisite power and authority to carry on its business
as it is currently being conducted;
(b) it has all requisite power and authority to enter
into, deliver and perform its obligations under this Agreement and to consummate
the transactions contemplated hereby, including, subject to SECTION 1(d), the
power and authority to issue and deliver the Series F Preferred Shares;
(c) it has taken all actions necessary to authorize it to
enter into and perform its obligations under this Agreement and to consummate
the transactions contemplated hereby (including, subject to SECTION 1(d), the
issuance of the Series F Preferred Shares). This Agreement is a legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as the enforceability hereof may be limited by (i) the
effect of bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting the rights and remedies
of creditors and (ii) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law;
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(d) the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not
(i) violate any provision of its constitutive documents, (ii) violate any
statute or law or any judgment, decree, order, regulation or rule of any court
or governmental authority to which the Company is subject or by which it or any
of its properties may be bound, except such violations that could not, singly or
in the aggregate, reasonably be expected to have a material adverse effect on
the Company or (iii) violate any agreement to which the Company is a party or by
which it or any of its properties may be bound, except such violations that
could not, singly or in the aggregate, reasonably be expected to have a material
adverse effect on the Company;
(e) subject to SECTION 1(d), all of the Series F
Preferred Shares to be issued pursuant to this Agreement have been duly
authorized and, upon issuance, the Series F Preferred Shares will be duly
issued, fully paid and non-assessable; and
(f) there are no actions, suits, proceedings, or
investigations pending or, to its knowledge, threatened to which it is (or is
threatened to be) a party before any court or other governmental authority which
could reasonably be expected to have a material adverse effect on the
transactions contemplated hereby.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF WCCF.
WCCF represents, warrants and covenants to the Company as follows:
(a) it has been duly organized, is validly existing and
is in good standing under the laws of its jurisdiction of organization and has
all requisite organizational power and authority to carry on its business as it
is currently being conducted;
(b) it has all requisite organizational power and
authority to enter into, deliver and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby;
(c) it has been duly authorized to enter into and perform
its obligations under this Agreement and to consummate the transactions
contemplated hereby;
(d) this Agreement is a legal, valid and binding
obligation of WCCF, enforceable against WCCF in accordance with its terms,
except as the enforceability hereof may be limited by (i) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights and remedies of
creditors and (ii) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law;
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(e) the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not
(i) violate any provision of its constitutive documents, (ii) violate any
statute or law or any judgment, decree, order, regulation or rule of any court
or governmental authority to which WCCF is subject or by which it or any of its
properties may be bound, except such violations that could not, singly or in the
aggregate, reasonably be expected to have a material adverse effect on WCCF or
(iii) violate any agreement to which WCCF or WRI is a party or by which it or
any of its properties may be bound, except such violations that could not,
singly or in the aggregate, reasonably be expected to have a material adverse
effect on WCCF;
(f) it owns the Put Securities free and clear of all
rights and claims of third parties, and it has not, directly or indirectly,
voluntarily or involuntarily, by operation of law or otherwise, assigned,
transferred, encumbered or granted a security interest in such Put Securities;
(g) there are no actions, suits, proceedings or, to its
knowledge, investigations pending or threatened to which it is (or is threatened
to be) a party before any court or other governmental authority which could
reasonably be expected to have an adverse impact on the transactions
contemplated hereby;
(h) WCCF is acquiring the put right granted hereunder for
investment on behalf of itself and not with a view to or for sale in connection
with any distribution thereof, and WCCF has no present intention or plan to
effect any distribution thereof within the meaning of the Securities Act of
1933, as amended (the "SECURITIES ACT"). WCCF has received copies of the
Company's Reports on Form 10-K for the year ended December 31, 1999 and Form
10-Q for the quarter ended March 31, 2000, the reports filed with the Securities
and Exchange Commission since December 31, 1999 pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended, and the Company's Registration
Statement on Form S-3 (File No. 333-31658), as filed with the Commission on
March 3, 2000 (collectively, the "DISCLOSURE DOCUMENTS"). WCCF has been
furnished the opportunity to ask questions of and receive answers from
representatives of the Company concerning the Disclosure Documents and the
business and financial affairs of the Company;
(i) WCCF understands that the Series F Preferred Shares
to be issued upon exercise of the put right have not been and will not be
registered under the Securities Act or applicable state securities laws and
agrees not to sell, pledge or otherwise transfer any of the Shares in the
absence of such registration or an opinion of counsel reasonably
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satisfactory to the Company that such registration is not required. WCCF
acknowledges that the Company is not required to register the Series F Preferred
Shares;
7. COVENANTS OF THE COMPANY. Subject to SECTION 1(d),
the Company covenants that it will at all times keep available such number of
authorized Series F Preferred Shares issuable upon exercise of the put right by
WCCF.
8. INDEMNIFICATION. (a) (i) WCCF agrees to indemnify the
Company and its affiliates, officers, directors, employees, agents, successors
and assigns (each a "COMPANY INDEMNIFIED PARTY") against and hold them harmless
from all losses, liabilities, damages, claims, awards, judgments, costs and
expenses (including reasonable attorneys' fees) actually suffered or incurred by
a Company Indemnified Party resulting from a breach of the representations and
warranties contained in SECTION 6. Notwithstanding anything to the contrary
herein, notice in accordance with SECTION 9 of any claim for any breach of the
representations contained in SECTION 6 must be made within 12 months of the Put
Date.
(ii) Notwithstanding any other provision of this
Agreement, WCCF shall not make a payment to any Company Indemnified Party if, in
the opinion of tax counsel to the Company, the receipt of such payment or
portion thereof by such Company Indemnified Party would adversely affect the
ability of the Company to qualify as a real estate investment trust for U.S.
Federal income tax purposes (the portion of each such payment which adversely
affects the ability of the Company to qualify as a real estate investment trust
for U.S. Federal income tax purposes, a "TAINTED PAYMENT"). In the event that
tax counsel to the Company determines that any such payment or portion thereof
constitutes a Tainted Payment, WCCF shall pay the portion thereof that does not
constitute a Tainted Payment (the "NON-TAINTED PAYMENT") and shall deposit the
remainder thereof with an escrow agent reasonably satisfactory to both the
Company and WCCF, pursuant to an escrow agreement reasonably satisfactory to
both the Company and WCCF. Any amount initially constituting a Tainted Payment
deposited by WCCF with an escrow agent shall be released by the escrow agent to
a Company Indemnified Party only if the Company receives either (A) an opinion
of tax counsel to the Company to the effect that all or any portion of the
amount deposited with the escrow agent would constitute income that satisfies
the requirements of Section 856(c)(2) of the Internal Revenue Code of 1986, as
amended ("QUALIFYING INCOME") or (B) a letter from the Company's independent
accountants indicating the maximum amount (the "MAXIMUM AMOUNT") that can be
paid at that time without causing the Company to fail to meet the REIT
Requirements for any relevant taxable year, together with either an Internal
Revenue Service ruling issued to the Company or an opinion of tax counsel to the
Company to the effect that payment of the Maximum Amount would not adversely
affect the ability of the Company to qualify as a real estate investment trust
for U.S. Federal income tax purposes for such taxable year. In the event that
the Company receives the opinion described
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in (A) above, then the portion of the amount deposited with the escrow agent
which constitutes Qualifying Income shall be released by the escrow agent and
paid to the Company Indemnified Party entitled to the receipt of such payment.
In the event that the Company receives the letter and either the ruling or the
opinion described in (B) above, then the Maximum Amount shall be released by the
escrow agent and paid to the Company Indemnified Party entitled to the receipt
of such payment. WCCF's obligation to maintain funds on deposit with the escrow
agent shall terminate three years from the date on which WCCF has deposited
funds constituting the Tainted Payment with the escrow agent, and following the
expiration of such three year period, WCCF shall have no further obligation to
any Company Indemnified Party under this Section 8 in respect of any Tainted
Payment.
(b) The Company agrees to indemnify WCCF and its
affiliates, officers, directors, employees, agents, beneficiaries, successors
and assigns (each a "WCCF INDEMNIFIED PARTY") against and hold them harmless
from all losses, liabilities, damages, claims, awards, judgments, costs and
expenses (including reasonable attorneys' fees) actually suffered or incurred by
a WCCF Indemnified Party: (i) relating to or arising out of any debts,
liabilities or obligations of WRI, whether accrued or fixed, absolute or
contingent, matured or unmatured or determined or determinable, whether arising
or accruing before or after the Put Date, except in each case for liabilities
that should have been listed on the Net Asset Schedule in accordance with
SECTION 6(l) or (ii) resulting from a breach of the representations and
warranties contained in SECTION 5. Notwithstanding anything to the contrary
herein, notice in accordance with SECTION 9 of any claim for any breach of the
representations contained in SECTION 5 must be made within 12 months of the Put
Date.
9. NOTICES. All notices, offers or other communications
required or permitted to be given pursuant to this Agreement shall be in writing
and may be personally served, sent by facsimile or sent by first-class,
registered or certified mail, return receipt requested, postage prepaid and
shall be deemed to have been given when delivered in person, upon receipt of
facsimile or three business days after deposit in the mail. For purposes of this
SECTION 9, the addresses of the parties hereto shall be as follows:
If to the Company:
Westfield America, Inc.
c/o Westfield Corporation, Inc.
00000 Xxxxxxxx Xxxx., 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: General Counsel
Facsimile: (000) 000-0000
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If to WCCF:
Westfield Capital Corporation Finance Pty. Limited
c/o Westfield Holdings Limited
100 Xxxxxxx Street, 00xx Xxxxx
Xxxxxx, Xxx Xxxxx Xxxxx 0000
Xxxxxxxxx
Attention: Company Secretary
Facsimile: 011-61-2-9358-7077
The address of any party hereto may be changed by a notice in writing given in
accordance with the provisions hereof.
10. ASSIGNMENT. No party hereto may assign this Agreement
or its rights hereunder.
11. SUCCESSORS. This Agreement and all terms and
provisions hereof shall be binding upon and shall inure to the benefit of all
parties hereto, and their legal representatives, heirs and successors, except as
expressly otherwise provided herein.
12. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which shall
constitute one and the same instrument.
13. ENTIRE UNDERSTANDING; ETC. This Agreement constitutes
the entire agreement and understanding among the parties hereto with respect to
the subject matter hereof and supersedes any prior understandings and/or written
or oral agreements among them with respect thereto.
14. AMENDMENTS. This Agreement may not be amended, and no
provision benefitting any party to this Agreement may be waived, except by a
written instrument signed by the Company and WCCF.
15. SEVERABILITY. If any provision of this Agreement, or
the application of such provision to any person or circumstance, shall be held
invalid by a court of competent jurisdiction, the remainder of this Agreement,
or the application of such provision to persons or circumstances other than
those to which it is held invalid by such court, shall not be affected thereby.
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16. PRONOUNS AND HEADINGS. As used herein, all pronouns
shall include the masculine, feminine and neuter, and all defined terms shall
include the singular and plural thereof wherever the context and facts require
such construction. The headings, titles and subtitles herein are inserted for
convenience of reference only and are to be ignored in any construction of the
provisions hereof.
17. FURTHER ASSURANCES. Each of the parties hereto shall
hereafter execute and deliver such further instruments and do such further acts
and things as may be required or useful to carry out the intent and purposes of
this Agreement and as are not inconsistent with the terms hereof.
18. EFFECT AND INTERPRETATION. THIS AGREEMENT SHALL BE
CONSTRUED, INTERPRETED AND GOVERNED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, INCLUDING, WITHOUT LIMITATION, SECTION(S) 5-1401 AND 5-1402 OF THE NEW
YORK GENERAL OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(b).
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF ANY STATE COURT OR ANY FEDERAL COURT SITTING IN THE STATE OF NEW
YORK IN THE BOROUGH OF MANHATTAN IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY (i)
AGREES THAT THE STATE OF NEW YORK IS THE MOST CONVENIENT FORUM FOR THE
RESOLUTION OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND (ii) WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN ANY DELAWARE COURT, INCLUDING, BUT NOT LIMITED TO, ANY
CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY DELAWARE COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.
19. MISCELLANEOUS. The Company and WCCF acknowledge that
the only representations and warranties given by such parties are those
expressly contained in this Agreement and that they are not relying on any oral
or implicit representations made by or on behalf of any parties to this
Agreement. Each party has relied on their own advisers, including their tax
advisers, with respect to entering into this Agreement and any documents or
agreements that may be delivered pursuant to this Agreement.
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20. WITHHOLDING. Any amount of U.S. Federal, state or
local taxes required to be withheld by the Company with respect to any portion
of the acquisition consideration paid to WCCF shall be deemed a payment to WCCF
and shall reduce the amount of acquisition consideration otherwise payable by
the Company to WCCF under this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
COMPANY:
WESTFIELD AMERICA, INC.
a Missouri corporation
By: /s/ Xxx Xxxxxx
--------------------------------------
Name: Xxx Xxxxxx
Title: Secretary
WCCF:
WESTFIELD CAPITAL CORPORATION
FINANCE PTY. LIMITED
a New South Wales corporation
By: /s/ Xxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxx Xxxxx
Title: Director
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EXHIBIT A
FORM OF CERTIFICATE OF WCCF
Reference is hereby made to that certain Put Agreement (the
"PUT AGREEMENT"), dated as of June 1, 2000, by and between Westfield America,
Inc., a Missouri corporation, and Westfield Capital Corporation Finance Pty.
Limited, ACN 003 077 816, a company incorporated in the State of New South
Wales, Australia. This Certificate is being delivered to you pursuant to SECTION
3(b)(ii) of the Put Agreement. Capitalized terms used herein, but not otherwise
defined, shall have the meaning ascribed such terms in the Put Agreement.
1. The undersigned hereby certifies that the
representations and warranties contained in SECTION 6 of the Put Agreement are
true and accurate in all material respects with the same force and effect as
though originally made at and as of the date hereof.
2. The undersigned certifies that all of the conditions
set forth in SECTION 3(c) of the Put Agreement have been satisfied as of the
date hereof.
3. There are no options, warrants or similar rights
issued by WRI or any of its subsidiaries and currently outstanding.
4. Other than the Put Securities, there are no other
securities outstanding of WRI or any of its subsidiaries.
A-1
IN WITNESS WHEREOF, the undersigned has executed this
Certificate as of ______________.
WESTFIELD CAPITAL CORPORATION
FINANCE PTY. LIMITED
a New South Wales corporation
By: ----------------------------------
Name:
Title:
A-2
